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| Montana Administrative Register Notice 17-417 | No. 18 09/23/2022 | |
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BEFORE THE DEPARTMENT OF ENVIRONMENTAL QUALITY OF THE STATE OF MONTANA
TO: All Concerned Persons
1. On March 25, 2022, the Department of Environmental Quality published MAR Notice No. 17-417, pertaining to the public hearing on the proposed amendment and adoption of the above-stated rules at page 367 of the 2022 Montana Administrative Register, Issue No. 6. On June 24, 2022, the department published a supplemental notice of proposed amendment and adoption at page 952 of the 2022 Montana Administrative Register, Issue No. 12.
2. The department has amended the following rules exactly as proposed: ARM 17.74.501, 17.74.505, 17.74.506. 17.74.507, 17.74.512, 17.74.513, 17.74.516, and 17.74.518.
3. The department has amended the following rules as proposed but with the following changes, stricken matter interlined, new matter underlined:
17.74.504 DEFINITIONS For the purposes of this subchapter, unless the context clearly indicates otherwise, the following terms have meanings indicated below and are supplemental to the definitions in 75-10-1302, MCA: (1) "Assessment plan" means a department-approved plan, using sampling to identify the presence or extent of potential contamination of an inhabitable property (2) through (16) remain as proposed. (18) through (20) remain as proposed, but are renumbered (17) through (19).
17.74.508 CONTRACTOR CERTIFICATION AND RENEWAL (1) An applicant for department certification as a methamphetamine cleanup contractor shall: (a) remains as proposed. (b) provide evidence of successful completion of a department-approved initial 16-hour methamphetamine cleanup contractor course and submit to the department (c) through (3) remain as proposed. (4) If a previously certified methamphetamine cleanup contractor does not apply for a renewal of (5) remains as proposed.
17.74.511 INITIAL TRAINING COURSE REQUIREMENTS (1) Initial methamphetamine cleanup contractor training courses must be taught by a person with a current methamphetamine cleanup contractor training provider certificate issued pursuant to ARM 17.74.514 and must include a minimum of 16 hours of methamphetamine cleanup contractor training that covers: (a) through (i) remain as proposed. (j) techniques for obtaining information to make site assessments, including: (i) (ii) (iii) through (2) remain as proposed.
17.74.514 TRAINING PROVIDER CERTIFICATION (1) remains as proposed. (2) An applicant for methamphetamine cleanup contractor training provider certification shall submit to the department at least 45 working days before the requested methamphetamine cleanup contractor training provider certification start date: (a) remains as proposed. (b) a list of (c) and (d) remain as proposed. (e) (f) a blank copy of the methamphetamine cleanup contractor certificate that will be provided to attendees who successfully complete the course and pass the examination. (i) remains as proposed. (ii) the course attendee's name (iii) through (viii) remain as proposed.
(x) and (xi) remain the same, but are renumbered (ix) and (x). (g) through (4) remain as proposed.
17.74.515 CERTIFIED TRAINING PROVIDER RESPONSIBILITIES (1) and (2) remain as proposed. (3) A methamphetamine cleanup contractor training provider shall submit to the department a list of attendees within 10 working days following the completion of the methamphetamine cleanup contractor training course. The list must identify: (a) through (c) remain as proposed. (d) each participant's methamphetamine cleanup contractor certificate number, which is assigned by the methamphetamine cleanup contractor training provider (e) and (4) remain as proposed.
17.74.517 DENIAL, SUSPENSION, AND REVOCATION OF CERTIFICATION (1) and (2) remain as proposed. (3) When the department believes there is cause for denial, suspension, or revocation of the certification of a methamphetamine cleanup contractor or methamphetamine cleanup contractor training provider under (1) or (2), it shall serve written notice of the department's determination and the basis for the department's action to deny, suspend, or revoke certification. The notice must specify the reason for denial, suspension, or revocation of a methamphetamine cleanup contractor or methamphetamine cleanup contractor training provider certification and shall include an order to take necessary corrective action within a reasonable period of time. An order becomes final unless, within 30 working days after the order is received, the
4. The department has adopted NEW RULE II (17.74.520), and NEW RULE III (17.74.521) exactly as proposed.
5. The department has adopted NEW RULE I (17.74.519) as proposed in the supplemental notice published on June 24, 2022, but with the following changes, stricken matter interlined, new matter underlined:
NEW RULE I (17.74.519) SAMPLING PROCEDURES (1) remains as proposed. (2) The department may approve an (3) and (4) remain as proposed. (5) An assessment or clearance plan shall incorporate a sampling plan that follows an authoritative sampling approach, which uses professional judgment to target (a) through (c) remain as proposed. (d) at least one sample from each exhaust fan when exhaust fans are present in the inhabitable property, unless assumed to be contaminated by the contractor. (6) Each (7) If the encountered site conditions at an inhabitable property are different from the expected site conditions, the methamphetamine certified cleanup contractor may complete
6. The department has thoroughly considered all substantive and timely comments received during the public comment period. A summary of the comments received and the department's responses are as follows:
COMMENT NO. 1: The commenter noted that "draft rules should be continued and not authorized until bill sponsors have input." RESPONSE: The bill sponsor was notified in accordance with 2-4-302, MCA, on June 3, 2021, January 4, 2022, and then again June 24, 2022, regarding the supplemental notice. The bill sponsor has been updated regularly on the progress of this rulemaking as required under the Montana Administrative Procedure Act. No change is made in response to this comment.
COMMENT NO. 2: The commenter respectfully requested that the department not approve the proposed rules at the present time, and to reengage with the interested parties. RESPONSE: The department seriously considered this comment and, because most of the public comments regarded proposed New Rule I, the department sought further written comments from interested parties through a supplemental rule notice limited to proposed New Rule I. Additionally, the department hosted public stakeholder meetings regarding Proposed New Rule I on June 27, 2022, and June 29, 2022.
COMMENT NO. 3: The commenter noted that the term "suspected contamination" is discussed throughout rules without a clear explanation. RESPONSE: "Contamination" is defined in ARM 17.74.504 and cleanup contractors may rely on their professional judgment, or consult with program staff, to determine what constitutes "suspected." No change is made in response to this comment.
COMMENT NO. 4: The commenter asked if the department's checklists will be updated and provided. RESPONSE: The department has provided checklists, as guidance to contractors, and intends to continue this practice. Reference to the department checklists is not mandatory. No change is made in response to this comment.
COMMENT NO. 5: The commenter asked if there was a difference between "sampling plan" and "assessment plan." RESPONSE: Because the definitions of "sampling plan," "assessment plan," and "site assessment" caused confusion, the department revised the definition of "assessment plan" to include a department-approved plan, using sampling, to identify the presence or extent or potential contamination of an inhabitable property. The approved assessment plan is used to investigate suspected contamination of inhabitable property, to confirm methamphetamine contamination, and to evaluate the extent and magnitude of contamination by hazardous chemical residue from the manufacture of methamphetamine or by smoke from the use of methamphetamine. The actions taken by the certified methamphetamine cleanup contractor to implement an assessment plan may include site assessment or final assessment and clearance depending on the purpose, timing, and the outcome of the sampling.
COMMENT NO. 6: The commenter indicated that the use of "site assessment" and "site plan" need further clarification as they are both defined in ARM 17.74.504 yet mean the same thing. RESPONSE: See Response to Comment No. 5 above. The term "site plan" is not defined in ARM 17.74.504, but "assessment plan" is defined and site assessment refers to implementation of the assessment plan by the certified methamphetamine cleanup contractor.
COMMENT NO. 7: The commenter asked why a "site assessment plan" is needed before a "sampling plan" and cites additional costs to property owners. RESPONSE: See Responses to Comments 5 and 6 above. The department believes the revisions to the definition of "assessment plan," the elimination of the definition of "site assessment," and the responses to Comments 5 and 6 will resolve the confusion.
COMMENT NO. 8: The commenter noted that chemical contamination is not included and that various chemicals should be identified for comparison to OSHA regulations RESPONSE: Section 75-10-1303(1), MCA provides the department authority to adopt standards for "precursors to methamphetamine that are consistent with the standard for methamphetamine." At this time, the department is not exercising its discretion to adopt standards for methamphetamine precursor compounds because the chemicals and compounds used in the manufacture of methamphetamine are evolving. The department believes the decontamination standard for methamphetamine of 1.5 micrograms per 100 square centimeters of surface material is protective of human health and will continue to assess the need to adopt additional methamphetamine decontamination standards for precursor compounds. Worker protection is regulated by OSHA, and the department has no authority to regulate in this area.
COMMENT NO. 9: The department received two comments asking about reference to "New Rule II." RESPONSE: The department inserts the term "New Rule II" as a placeholder. When New Rule II is adopted and codified the assigned rule number of ARM 17.74.520 will be inserted in its proper place.
COMMENT NO. 10: Commenters asked if a "neutral" third party could be used for final clearances. RESPONSE: ARM 17.74.507(1)(c) requires that "final clearance sampling is conducted by an independent certified methamphetamine cleanup contractor who is not the certified methamphetamine cleanup contractor or employed by the certified methamphetamine cleanup contractor that performed the decontamination work." No changes were made in response to this comment.
COMMENT NO. 11: The commenter asked for clarification on department "list" for smoking sites. The department should be aware that the "list" for smoke sites are public records. RESPONSE: The list referenced in ARM 17.74.506(1) is a list of CML-contaminated properties reported to the department by state or local law enforcement. See 75-10-1306, MCA. Smoking contaminated sites are not included in this requirement and are not publicly made available on a "website." However, the commenter is correct that documents, emails, and site information collected by the department, in the performance of its confirmation that the decontamination standards are being met, are subject to Article II, Section 9 of the Montana Constitution, and 2-6-1003, MCA, and are therefore subject to records requests made by the public. No change is made in response to this comment.
COMMENT NO. 12: The commenter asked what standards within the proposal apply to "non-listed" sites. RESPONSE: See the response to Comment 11. The department assumes the comment relates to sites contaminated by smoking. The decontamination standard in 75-5-1303, MCA applies to sites contaminated by CMLs and by smoking. No change is made in response to this comment.
COMMENT NO. 13: The commenter asked that a "neutral" third party be used for final clearances and requests that relatives and past employees of the cleanup contractor be excluded. RESPONSE: Please see response to Comment 10. DEQ believes the requirement to use a neutral independent certified methamphetamine cleanup contractor is clear and will not amend ARM 17.74.507 to specifically exclude "relatives and past employees." No change is made in response to this comment.
COMMENT NO. 14: The commenter does not believe that the contractor qualifications are as stringent as other states and notes that changes to ARM in 2014 may not ensure adequate qualifications. RESPONSE: The department believes the methamphetamine cleanup contractor certification requirements, which include maintenance of HAZWOPER training and Montana methamphetamine cleanup contractor certifications, are suitable to ensure methamphetamine cleanup contractors have training necessary to protect themselves and the public from exposure to methamphetamine contamination in inhabitable structures. Training requirements established in the proposed rule are minimum standards that may be augmented at the discretion of individual employers or training providers. No changes were made in response to this comment.
COMMENT NO. 15: The commenter questioned online courses and attendees signing a roster. Can the rule address this or should this remain as an exemption? RESPONSE: The department agrees and removed submittal of the course roster as evidence of successful completion of a department-approved methamphetamine cleanup contractor course in ARM 17.74.508. The department will consider methods for authenticating and accepting electronic signatures as evidence of attendance of online courses.
COMMENT NO. 16: The commenter noted that ARM 17.74.508(4) is incomplete and missing language. RESPONSE: The department amended the language in ARM 17.74.508(4) to clarify if a previously certified methamphetamine cleanup contractor does not apply for a renewal of certification within one year following the expiration of the contractor's methamphetamine cleanup contractor certification, they become ineligible for recertification through a refresher course and must instead retake the initial course.
COMMENT NO. 17: The commenter asked if "baseline site assessment" should be defined. RESPONSE: The department removed the term "baseline" in ARM 17.74.511(1)(j)(i) and (ii). See responses to Comments 5 and 6. "Assessment plan" is defined in ARM 17.74.504 and clarifies that a "site assessment" is carried out by a certified methamphetamine cleanup contractor in accordance with a DEQ-approved assessment plan.
COMMENT NO. 18: The commenter asked for clarification on approval of instructor applicant qualifications. RESPONSE: The department amended the language in ARM 17.74.514(2)(b) to clarify that a training instructor, responsible for the information given during a course, must have a current methamphetamine cleanup contractor certification. Additionally, the department amended the language in ARM 17.74.514(2)(b) to further clarify that the certification requirements do not extend to training course guest speakers.
COMMENT NO. 19: The commenter asked if the language in ARM 17.74.514(2)(f) required a blank certificate to be submitted by a training provider applicant. RESPONSE: The department confirms that training providers must submit an example blank copy of the methamphetamine cleanup contractor certificate that will be provided to attendees who successfully complete the course and pass the examination. The language in ARM 17.74.514(2)(f) has been clarified by adding the word "blank" and the duplicative second sentence has been deleted.
COMMENT NO. 20: The commenter expressed that a student's address should not be on a training certificate, that it would seem more appropriate to have the student's address included on the course roster. RESPONSE: The department agrees and struck "address" from ARM 17.74.514(2)(f)(ii).
COMMENT NO. 21: The commenter stated the word "approval" conflicts with the department statement of necessity on page 377 of the MAR notice, for ARM 17.74.511. RESPONSE: The department agrees and struck the language regarding department approval of initial training courses. Instead, the department is establishing requirements and procedures for certification of methamphetamine cleanup contractors as authorized by 75-10-1304, MCA.
COMMENT NO. 22: The commenter stated that a statement regarding a passing grade on the test is excessive as a student failing the test does not receive the certificate. RESPONSE: The department agrees and struck the proposed language in ARM 17.74.514(2)(f)(ix).
COMMENT NO. 23: The commenter states numbering should be changed to a two-digit year followed by two-digit month instead of four-digit year only. RESPONSE: The department struck the proposed certificate numbering system in ARM 17.74.515(3)(d)(i) through (iii). The methamphetamine cleanup contractor certificate number will be assigned by the methamphetamine cleanup contractor training provider.
COMMENT NO. 24: The commenter stated that ARM 17.74.517(3) is poorly worded. RESPONSE: The department believes the language in ARM 17.74.517(3) sets forth a clear and fair process for appeal of a department order denying, suspending, or revoking a certification under this chapter. The department added language to clarify that the order will become final unless, within 30 working days after the order is received, the named methamphetamine cleanup contractor or methamphetamine cleanup contractor training provider submits a written request for a hearing before the department.
COMMENT NO. 25: The commenter stated that New Rule II adds requirements for submittals but does not address guidance to contractors on cleanup protocols, or adding consistency as requested in HB 116. RESPONSE: The commenter misconstrued the intent of HB 116, which expands the requirements to notify and remediate inhabitable properties contaminated with methamphetamine from CMLs and from smoking, raises the decontamination standard, and revises the immunity for owners of contaminated inhabitable properties. New Rule II provides reasonable requirements for the documentation provided to the department pursuant to 75-10-1306, MCA, to establish the decontamination standard has been met. New Rule II does not provide recommended work practices or protocols. No changes were made to New Rule II in response to the comment.
COMMENT NO. 26: The commenter asked specific information on attics, HVACs, appliance cleaning, and encapsulation approval. RESPONSE: New Rule I(5) requires sampling all areas of an inhabitable structure suspected of containing the highest levels of contamination and relies on the professional judgment of the certified methamphetamine cleanup contractor to select sampling locations based on site specific conditions. Please refer to response to Comment No. 75.
COMMENT NO. 27: The commenter asked why New Rule II did not include cleanup procedures including agitation and cleanup techniques. RESPONSE: See Response to Comment No. 25.
7. The following comments include those timely and substantive comments on proposed New Rule I (ARM 17.74.519) received during both the initial comment period and during the supplemental comment period which closed July 14, 2022:
COMMENT NO. 28: The commenter stated that the new rules are a departure from current accepted practices and may cause additional expense to owners. RESPONSE: The department received similar comments from multiple commenters that the proposed new rules would increase cleanup costs and be burdensome to property owners. Those comments generally asserted the proposed rules are too detailed, directive, and costly. The department carefully considered the comments and simplified New Rule I to reference the standards set forth in NIOSH 9111, the Methamphetamine Indoor Decontamination Standards in 75-10-1303, MCA, and this subchapter, and to rely on the professional judgment of certified methamphetamine cleanup contractors.
COMMENT NO. 29: The commenter noted that there should be a different set of procedures for "assessment" sampling and "clearance" sampling to avoid needlessly increasing costs. RESPONSE: New Rule I (ARM 17.74.519) provides simplified sampling procedures. The department will review and approve alternative methods when they are at least as protective as the methods in NEW RULE I(1).
COMMENT NO. 30: The commenter was concerned over the large number of samples and the cost to the contractors and to the property owners. RESPONSE: See Response to Comment No. 26. The agency has amended the language in New Rule I(5) to require sampling all areas of an inhabitable structure suspected of containing the highest levels of contamination, rely on the professional judgment of the certified methamphetamine cleanup contractor, and provide greater collaboration between the department and contractor.
COMMENT NO. 31: The commenter noted that specifying items such as gloves is excessive, that this is covered under experience and SOPs [standard operating procedures]. RESPONSE: As noted in Response to Comment No. 29, the sampling protocols in New Rule I (ARM 17.74.519) including work practices, documentation, labelling, and chain of custody requirements have been streamlined to those necessary to ensure the accuracy and integrity of sampling.
COMMENT NO. 32: The commenter said that New Rule I is unduly burdensome and needs to allow for professional judgement instead of forcing the assumption that all rooms are contaminated RESPONSE: See Responses to Comments 26, 28, and 30. New Rule I (ARM 17.74.519) provides simplified sampling procedures.
COMMENT NO. 33: The commenter supported previous statements regarding the new rules, that they are financially overburdensome on contractors and the property owners. RESPONSE: See Responses to Comments 26, 28, 29, 30, and 31.
COMMENT NO. 34: The commenter stated the language "prior to sampling" should be struck. RESPONSE: See Responses to Comments 29 and 31. The requirement in New Rule I(4)(a) to photograph sample locations is retained, but the condition that the sample locations be photographed "prior to sampling" is deleted. The sampling protocols in New Rule I (ARM 17.74.519) have been simplified to include those necessary to describe sampling location, labelling, and chain of custody requirements that ensure the accuracy and integrity of sampling. See NEW RULE I(4). Clear sampling documentation is necessary for the department to ensure the decontamination standard in 75-10-1303, MCA is met before removing properties from the list maintained under 75-10-1306, MCA, or providing a certificate of fitness.
COMMENT NO. 35: The commenter explained why clients would not pay for a separate visit, and then stressed the reasons why a client would not pay. RESPONSE: See Responses to Comments 29, 31, and 34.
COMMENT NO. 36: The commenter noted all areas could be considered "suspect." RESPONSE: See Responses to Comments 29 and 31. See New Rule I(5). It is necessary to consistently sample areas most likely to contain contamination. The department will rely on professional judgment of the certified methamphetamine cleanup contractors to develop and execute a reliable sampling approach. The proposed NEW RULE I(5) meets the legislative intent of 75-10-1303, MCA, by choosing sample numbers and locations based on the circumstances of the contamination.
COMMENT NO. 37: The commenter stated that "industry standards," department requirements, and EPA guidance vary in the sampling and analytical testing. RESPONSE: See Responses to Comments 29, 31, and 36.
COMMENT NO. 38: The commenter stated the requirement for gloves should not be in the rule as it is in method and standard industry practices. RESPONSE: See Response to Comment 31.
COMMENT NO. 39: The commenter identified that the decontamination requirement does not belong in the rule, as it is a basic IH [Industrial Health] practice. RESPONSE: New Rule I (ARM 17.74.519) sets forth protocols for sampling for methamphetamine contamination to verify the attainment of the decontamination standard. See New Rule I(4). See Response to Comment 34.
COMMENT NO. 40: The commenter stated that New Rule I(1)(f) should be removed as the required information cannot fit on a sample container. RESPONSE: See Responses to Comments 29, 31, and 34. The sampling protocols in New Rule I (ARM 17.74.519) have been simplified and the detailed labelling requirement in New Rule I(1)(f) has been removed. See NEW RULE I(4). The rule maintains sampling documentation requirements that are necessary for the department to ensure the decontamination standard in 75-10-1303, MCA is met before removing properties from the list maintained under 75-10-1306, MCA, or providing a certificate of fitness.
COMMENT NO. 41: The commenter noted New Rule I requires sampling labelling information that is on the chain of custody already. RESPONSE: See Response to Comment 40.
COMMENT NO. 42: The commenter noted that "blind" labelling for quality assurance should not be used, and reliance should be on the chosen laboratory. RESPONSE: See Responses to Comments 29, 31, 34, and 40.
COMMENT NO. 43: The commenter stated there are three different analytical methods that serve different uses and that the use of reagent should be left to the sampler. RESPONSE: New Rule I (ARM 17.74.519) requires the use of methanol over isopropanol when sampling listed properties to verify decontamination and remove the properties from the contaminated properties list. See New Rule I(1). The department will require the use of methanol because, in controlled environments, methanol has a higher recovery rate than laboratory-grade isopropanol. The department believes use of methanol will reduce the risk of erroneously clearing properties with residual methamphetamine contamination. NEW RULE I(2) allows the department to allow alternative methods if requested in advance and justified.
COMMENT NO. 44: The commenter asked, "what if ALS is out" (refers to ALS laboratories). RESPONSE: See Response to Comment 43. The department assumes the commenter is concerned the analytical laboratory could be out of methanol. NEW RULE I(2) provides the department may allow alternative methods if requested in advance and justified.
COMMENT NO. 45: The commenter noted that methanol may remove paint residue and since the standards allow for isopropanol to be used, it should remain an option. RESPONSE: See Response to Comment 43.
COMMENT NO. 46: The commenter stated that the required number of samples is excessive and should be at the discretion of the sampler. RESPONSE: See Responses to Comments 29 and 31. The department will require samples necessary to ensure consistency in sampling and allow professional judgment of the certified methamphetamine cleanup contractor to choose a reliable sampling approach. See NEW RULE I(5). Sample location and number are based on the circumstances of the contamination.
COMMENT NO. 47: The commenter stated, "nobody will pay for this." The commenter continued that the sampling costs would exceed actual cleanup costs. RESPONSE: See Response to Comment 46.
COMMENT NO. 48: The commenter noted that the proposal requires the collection of three samples from each "suspected" area, increasing the cost and disincentivizing assessment. RESPONSE: See Response to Comment 46.
COMMENT NO. 49: The commenter noted that New Rule I(1)(h)(i) should be removed, as statute covers manufacturing and consumption, not storage and that the proposal does not define chemicals or methamphetamine itself. RESPONSE: See Response to Comment 46.
COMMENT NO. 50: The commenter stated that chemical staining would be covered elsewhere in rule and is considered a "suspected" area of contamination under (b). RESPONSE: See Response to Comment 46.
COMMENT NO. 51: The commenter asked for data and documentation to support this proposal RESPONSE: See Response to Comment 46.
COMMENT NO. 52: The commenter stated that New Rule I(1)(h)(iii) varies widely and should be left to the discretion of the sampler. RESPONSE: See Response to Comment 46.
COMMENT NO. 53: The commenter requested that this proposal be removed, and professional judgement of sampler should be allowed. RESPONSE: See Response to Comment 46.
COMMENT NO. 54: The commenter stated that the surfaces in New Rule I(1)(h)(iv) clean easily. The commenter suggested that the focus should be on walls, ceilings, door jambs, trim, and HVACs. Though, it may be valid on clearances but is cost prohibitive. RESPONSE: See Response to Comment 46.
COMMENT NO. 55: The commenter indicated that the sampling of non-porous frequently cleaned surfaces is not a common practice and adds additional costs. RESPONSE: See Response to Comment 46.
COMMENT NO. 56: The commenter stated that the required information in New Rule I(1)(h)(v) cannot fit on a sample container. RESPONSE: The department assumes the commenter is referring to the sample labelling requirement in the initial proposal of New Rule I. See Response to Comment 40.
COMMENT NO. 57: The commenter requests removal of New Rule I(1)(h)(vi) as suspect areas are covered under (h). RESPONSE: See Response to Comment 46.
COMMENT NO. 58: The commenter stated that composite sampling is cost effective when used by a sampler familiar with basic IH practices and knowledge. RESPONSE: The department will not allow composite sampling for locating and establishing methamphetamine contamination. The compositing of multiple sample locations is inappropriate when verifying the decontamination standard of 1.5 micrograms is met. Upon prior request, the department may review and approve alternative methods if the proposed alternative is at least as protective.
COMMENT NO. 59: The commenter asked about the use of composite samples for "buy/sells." RESPONSE: See Response to Comment 58.
COMMENT NO. 60: The commenter stated it is cheaper to do composite samples than separate samples, which adds to making it cost prohibitive which equals less compliance. RESPONSE: See Response to Comment 58.
COMMENT NO. 61: The commenter discussed the use of composite sampling, which is primarily in real estate transactions and allows for the ability to keep costs down for property owners. RESPONSE: See Response to Comment 58.
COMMENT NO. 62: The commenter requested the removal of New Rule I(3) as the quality assurance/quality control is defined in analytical methods and believes the term "laboratory blank" is incorrectly used to refer to a "field blank." RESPONSE: The department revised New Rule I (ARM 17.74.519) to require sampling that safeguards accuracy and integrity and ensures the decontamination standard in 75-10-1303, MCA is met before removing properties from the list maintained under 75-10-1306, MCA, or providing a certificate of fitness. The revised version requires collection, preservation, and handling of all samples, field blanks, and media blanks under recorded chain of custody, accepted industry standards, and department-approved plans. See New Rule I(4).
COMMENT NO. 63: The commenter noted that New Rule I(4) should be removed and should defer to the professional judgement of the sampler given the additional cost to a property owner. RESPONSE: See Responses to Comments 29, 31, 34, 40, 58, and 62.
COMMENT NO. 64: The commenter believed that New Rule I(4) should be optional, that New Rule I(4) created an additional two samples beyond the approved sampling plan. RESPONSE: See Responses to Comments 29, 31, 34, 40, 58, and 62.
COMMENT NO. 65: The commenter believed that referencing in New Rule I of "sampling procedures" is incorrect and it should say "clearance." RESPONSE: The department acknowledges the comment and agrees the methamphetamine cleanup rules provide sampling protocols for verifying the attainment of the decontamination standard so that properties may be removed from the list maintained by the department in accordance with 75-10-1306, MCA, or obtain a certificate of fitness pursuant to these methamphetamine cleanup rules. No change is made in response to this comment.
COMMENT NO. 66: The commenter believed that having two samples per room could still potentially end up costing the client more (initial sampling plus clearance sampling) than the cleanup itself. RESPONSE: See Responses to Comments 29, 31, and 36. Section 75-10-1303(2), MCA, provides department authority to establish the number and locations of surface material samples to be collected based on the circumstances of the contamination and acceptable testing methods. In the absence of a department rule establishing the number and location of samples, a minimum of three samples must be taken from surfaces most likely to be contaminated at each property. See 75-10-1303(2)(b), MCA. The department revised New Rule I (ARM 17.74.519) to require at least two samples from each room or area within the inhabitable property where methamphetamine manufacturing or smoking is suspected to have occurred. This sampling must include areas likely to contain contamination. The department will rely on the professional judgment of the certified methamphetamine cleanup contractors to develop and execute a reliable sampling approach. See NEW RULE I(5). The department believes the rule meets the legislative intent of 75-10-1303, MCA, by choosing sample numbers and locations based on the circumstances of the contamination. No change is made in response to this comment.
COMMENT NO. 67: The commenter suggested that the department insert the language, "for the intent to remove from the list or receive a certificate of fitness." RESPONSE: The rule provides that sampling procedures and laboratory analyses set forth in New Rule I are for the purpose of assessing contamination and verifying the attainment of the decontamination standards for methamphetamine within inhabitable structures to remove an inhabitable property from the contaminated properties list, maintained by the department pursuant to 75-10-1306, MCA, or to obtain a certificate of fitness, pursuant to this subchapter. See New Rule I(1). No change is made in response to this comment.
COMMENT NO. 68: The commenter recommended changing language to allow for surface area samples greater than 100cm2, which are not allowed for clearance purposes. RESPONSE: New Rule I (ARM 17.74.519) refers to the standards set forth in NIOSH 9111, the Methamphetamine Indoor Decontamination Standards in 75-10-1303, MCA, and this subchapter, and relies on the professional judgment of certified methamphetamine cleanup contractors. Appropriate surface area sample size is covered under NIOSH 9111, which is incorporated by reference in New Rule III with the exceptions listed in New Rule I that disallow solvents other than methanol and sample compositing. No change is made in response to this comment.
COMMENT NO. 69: The commenter suggests rewording New Rule I(2) as the determination regarding sampling or analytical methods likely exceeds the scope of the department. RESPONSE: The department amended the language of New Rule I(2) to clarify that the department may accept an alternative sampling or analytical method, upon advance written request, when the department determines the proposed alternative method is at least as stringent or as accurate as the methods in (1).
COMMENT NO. 70: The commenter asked for clarification on the term "inhabitable property" as it applies to garages, outbuildings, attics, crawlspaces, etc. RESPONSE: The term "inhabitable property" is defined in 75-10-1302(2), MCA, and includes buildings or structures "intended to be primarily occupied by people, either as a dwelling or a business, including a storage facility, mobile home, or recreational vehicle, that may be sold, leased, or rented for any length of time." Attics and crawlspaces that are part of inhabitable structures must be sampled in accordance with New Rule I. No change is made in response to this comment.
COMMENT NO. 71: The commenter recommended removal stating "Sampling plans should be developed using professional judgement for the purpose of the sampling. DEQ has the ability to approve or deny a sample plan if . . . needed." RESPONSE: See Responses to Comments 29 and 31, and 36. See New Rule I(5). The department will rely on the professional judgment of certified methamphetamine cleanup contractors to develop and execute a reliable sampling approach. No change is made in response to this comment.
COMMENT NO. 72: The commenter believed that the proposal is "too ambiguous essentially all rooms would be considered contaminated until proven otherwise." RESPONSE: See responses to Comments 29, 31, 36, 66, and 71.
COMMENT NO. 73: The commenter stated that New Rule I(5)(b) should not be mandatory but should be at the contractor's discretion. RESPONSE: See responses to Comments 29, 31, 36, 66, and 71.
COMMENT NO. 74: The commenter stated that New Rule I(5)(b) should be based on professional judgement and that contractors and the department staff must have the ability to adjust based on the various property circumstances. RESPONSE: See responses to Comments 29, 31, 36, 66, and 71.
COMMENT NO. 75: The commenter stated that the number of samples should increase from one sample to two samples, as sampling will be in the HVAC unit and on the cold air return. RESPONSE: New Rule I(5) provides for at least one sample from each heating, ventilation, and air conditioning (HVAC) system's return side when such systems are present in the inhabitable property and at least one sample from each exhaust fan when exhaust fans are present in the inhabitable property. These minimum sampling requirements do not preclude collection and analysis of additional samples. The department modified New Rule I(5) to allow reduced sampling when positive results are obtained on the cold air return and the system may be assumed to be contaminated without additional sampling.
COMMENT NO. 76: The commenter believes the HVAC should be sampled as well unless it will be removed, and that clearance sampling should include the HVAC if it will be cleaned and left within the inhabitable property. RESPONSE: See response to Comment 75. New Rule I provides minimum sampling requirements and does not preclude additional samples.
COMMENT NO. 77: The commenter stated that in New Rule I(5)(d) [exhaust] fan[s] may be removed, which would preclude sampling. RESPONSE: See response to Comment 75. The department agrees with the comment. New Rule I(5) has been amended to allow reduced sampling when positive results are obtained on the cold air return and the system may be assumed to be contaminated without additional sampling.
COMMENT NO. 78: The commenter believed that the number of samples should be at the contractor's discretion. RESPONSE: See response to Comment 66. Section 75-10-1303(2), MCA, provides department authority to establish the number and locations of surface material samples to be collected based on the circumstances of the contamination and acceptable testing methods. New Rule I (ARM 17.74.519) requires at least two samples from each room or area within the inhabitable property where methamphetamine manufacturing or smoking is suspected to have occurred. The department will rely on the professional judgment of the certified methamphetamine cleanup contractors to develop and execute a reliable sampling approach. See NEW RULE I(5). The department believes the rule meets the legislative intent of 75-10-1303, MCA, by choosing sample numbers and locations based on the circumstances of the contamination. No change is made in response to this comment.
COMMENT NO. 79: The commenter believes these samples should be added to the plan, but the actual collection would be performed only if the contractor identifies the need. RESPONSE: The department assumes the comment is related to discretionary samples required in New Rule I(6). The department agrees with the commenter that the discretionary samples must be included in the department-approved assessment plan, but the collection and utilization of the discretionary samples is at the certified methamphetamine cleanup contractor's discretion based on the professional judgment of the methamphetamine cleanup contractor and based on field observations. New Rule I(6) is amended to clarify this intent.
COMMENT NO. 80: The commenter explained that changes in the field preclude the submission of a modified plan for approval by the department. RESPONSE: The department acknowledges the comment and amended New Rule I(7) by striking "submit a modified plan." Amended New Rule I(7) allows sampling in accordance with a modified plan with the methamphetamine cleanup contractor's explanation of the unexpected conditions and the resulting sampling plan deviations.
/s/ Angela Colamaria /s/ Christopher Dorrington ANGELA COLAMARIA CHRISTOPHER DORRINGTON Rule Reviewer Director Department of Environmental Quality
Certified to the Secretary of State September 13, 2022.
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